Tuesday, June 04, 2013Last Update: 6:41 AM PT

Judge Finds Room for Drug Testing in Florida

(CN) - Since weapon-carrying state workers may be subject to suspicionless drug testing, a federal judge went too far in blocking Florida from testing all public employees, the 11th Circuit ruled. In 2011, Florida Gov. Rick Scott issued an executive order requiring a drug test for all new state hires and random drug testing for all state agency employees. The order applies to roughly 85,000 people. The state employees' union, the American Federal of State, County and Municipal Employees Council 79, filed a federal complaint before the order was implemented. Concluding that such testing constituted an unreasonable search, the court issued a sweeping injunction that shielded all 85,000 current employees from implementation of the order. On appeal last week, however, a three-judge panel of the 11th Circuit showed more restraint. "This relief swept too broadly, enjoined both constitutional and unconstitutional applications of the EO [executive order], and did so without examining the specific job categories to be tested," Judge Stanley Marcus wrote for the Atlanta-based panel. "What the Supreme Court's case law requires, in contrast, is that the trial court balance the governmental interests in a suspicionless search against each particular job category's expectation of privacy." The Supreme Court has upheld suspicionless testing of state employees who carry weapons or operate heavy machinery, according to the judgment. The Florida Departments of Corrections, Juvenile Justice, Transportation and Environmental Protection have randomly tested some or all of its employees before Rick issued his executive order. "As to those safety-sensitive employees, the EO's application would most likely be constitutional, and, therefore, the district court's order cannot stand as written," the 61-page opinion states. The court declined, however, to grant Florida summary judgment. "At bottom, the state wants us to approve of a drug testing policy of far greater scope than any ever sanctioned by the Supreme Court or by any of the courts of appeals," Marcus wrote. "In order to meet its burden of justifying the EO, the State offers several reasons, stated only at the highest order of abstraction, for why it can drug test all of its employees without any individualized suspicion. However, the Supreme Court has approved of suspicionless drug testing only when the government has demonstrated heightened interests, such as a serious threat to public safety, that apply narrowly to specific job categories of employees." On remand, the state must demonstrate the need for random drug testing "on a job-category-by-category basis," the court ruled.